Some Thoughts on the GCR (and the GCM)

It was initially thought that the New York Declaration would include a Compact on Refugees that would be approved with the Declaration. Opposition from states seeking a Compact on Migration nixed this plan—they argued that both compacts should be developed together, even if both were to be drafted in decidedly different ways (the GCR by UNHCR, in consultation with states; the GCM through a state-led negotiated process). The impetus for the New York Declaration was the then large flow of migrants and refugees over the Mediterranean to Europe; but the Declaration took on a life of its own, addressing a wide range of issues well beyond the mixed flow of persons to Europe. So the Global Compact on Refugees called for by the Declaration focuses on the Comprehensive Refugee Response Framework (CRRF), which is essentially a plan for a comprehensive response in hosting states and not an approach for handling large onward movements of refugees from countries of first asylum. The CRRF is included in Annex 1 of the Declaration; it is what the GCR would have been had it been adopted in September 2016 with the Declaration.

It is, I think, a happy state of affairs that the New York Declaration did not include a GCR. It has given UNHCR and interested parties the opportunity to take a broader view of what ails the international refugee regime and what is needed to fix it. This will now be worked out in the “Programme of Action” to be included in the GCR. The Programme of Action is nominally a detailed plan for ensuring success of the CRRF. But already in the Zero Draft of the GCR it is more than that, and it is here that future development of the GCR will, and needs to, take place.

If the GCR is to have significance and take concrete steps toward major reform of the refugee regime it will need to go beyond the CRRF.

If the GCR is to have significance and take concrete steps toward major reform of the refugee regime it will need to go beyond the CRRF. This is so for two reasons. First, the CRRF largely affirms an already-in-place, reformed, framework for responding to refugee crises and protracted situations. The crucial role of development actors, the private sector, and civil society has been recognized for a while; and UNHCR had developed a close working relationship with the World Bank before the New York Declaration. Indeed, where the CRRF might have gone beyond the existing new way of working, it fails to do so. For instance, rather than assigning overall responsibility and accountability for CRRF plans, it asks UNHCR to “coordinate” efforts—a weakness of the current system of response.

Second, the idea of the New York Declaration was that UNHCR would develop a set of pilot projects to test the CRRF model and then recommend modifications of the CRRF based on experience that would be incorporated into the GCR. Unfortunately, those pilots do not appear to be proceeding at a pace that will allow significant lessons to be drawn. Uganda has been overwhelmed by new flows of refugees; Tanzania has withdrawn from the CRRF process; Bangladesh refused to sign up. Progress on the Somali situation largely derives from the IGAD process that produced the Nairobi Declaration, which preceded the New York Declaration.

So the Zero Draft essentially freezes the CRRF—announcing, in effect, that it is not up for renegotiation—and focuses its primary attention on the Programme of Action. There is lots there, and I may have occasion in a subsequent post to address a number of its provisions. Here I would like to focus on two issues: (1) the proposed Global Platform, and (2) the recognition of protection needs for forcibly displaced persons who do not come within the Convention definition of “refugee.”

The Global Platform

Paragraph 16 of the Zero Draft states:

In support of host countries and communities leading the response, UNHCR will, as needed, convene a global platform to assist with a comprehensive response to specific situations. Bringing together interested States, the platform will provide strategic support and facilitate more equitable and predictable burden- and responsibility-sharing, taking into account differing capacities and resources. . . . The platform could support the search for solutions and, if found appropriate, measures to address root causes of displacement. It will neither engage in operational activities nor duplicate existing coordination mechanisms.

The concept of a “global platform” is potentially a huge step forward. It would constitute a formal framework for convening states at a political level with the goal of enhancing international responsibility-sharing. In an ideal world, it might be preferable that states would be assigned, and be pre-committed to, a “share” of the world’s refugees and to meeting their needs—perhaps based on a state’s population size, GDP, and other factors. For notable examples of such approaches, see the study of Oxfam International and the Model International Mobility Convention proposed by the Columbia Global Policy Initiative. But it seems clear—even to the proposers of such schemes—that they will not be included in the GCR. The Global Platform can be seen as a first, but important, step in crafting a credible system of responsibility-sharing.

The Zero Draft’s proposal for a Platform, however, needs further rethinking. First, as drafted, the Platform appears episodic, called into action (or being) when UNHCR decides it could be useful. In my view, for the Platform to attain the political and action-based influence it needs to make the effort worthwhile, it (a) will need to be state-organized and state-driven, (b) should be a continuing process—light in structure, but able to build a set of networked relationships among relevant actors, and (c) must include hosting states and regional organizations as appropriate to the situation under consideration. Plainly, the Platform cannot operate wholly separately from UNHCR; so, for instance, it cannot be seen as a deep pocket to which hosting states would directly appeal nor should it be involved in the operational details of a particular CRRF plan. Nor is it a substitute for, or competitor of, UNHCR’s Executive Committee.

What the Global Platform could crucially do is to call together on a regular basis donor and hosting states, international financial institutions and perhaps the private sector and civil society for a global plan of response. Analogies can usefully be drawn to President Obama’s Leaders Summit and the Comprehensive Plan of Action for Southeast Asian refugees.

An important question is the role of regional approaches. Here, IGAD’s Nairobi Declaration and the ensuing process for Somali refugees provide a useful model. The plan is state-driven and regionally organized, but it calls for—and cannot succeed without—extra-regional support, particularly from global development actors.

The international protection needs of forcibly displaced persons

The Refugee Convention’s definition of refugee, and UNHCR’s mandate, has expanded since the 1950s. Under Convention interpretations and regional refugee instruments and practices, persons fleeing across a border to escape violence and conflict are entitled to international protection—without a requirement that they demonstrate an individualized fear of persecution. CRRF plans would clearly be appropriate in such circumstances—Syria, South Sudan, and eastern DRC all provide examples of such situations.

Beyond these established norms are other groups of persons who flee over borders and for whom, in the words of the Zero Draft of the GCM, “return is not possible.” Primary among such groups of persons are those fleeing natural disasters—storms, floods, droughts, earthquakes and tsumanis—the cause of some of which is climate change. The GCR makes a gesture at these forcibly displaced persons. It states (para. 47):

[W]here appropriate, UNHCR will advise on addressing broader international protection challenges, together with other relevant stakeholders. This could include:
— measures to protect those displaced by natural disasters and climate change, taking into account regional refugee instruments, as well as practices such as temporary protection, humanitarian stay arrangements, and complementary or subsidiary protection. [Footnotes deleted.]

I think the language needs to state more directly and affirmatively that persons forced over borders because of natural disasters and climate change should benefit from international protection. This would not be an expansion or amendment of the definition of “refugee” in the Convention, nor would it necessarily impose new obligations on states. But it would recognize that international organizations have the responsibility to respond to forced displacement where hosting states are not adequately able to do so.

Somewhat surprisingly, the Zero Draft of the GCM offers a more direct approach on this topic. It states (para. 19):

We commit to adapt options and pathways for regular migration in a manner that . . . facilitates access to protection in emergency situations.

In this regard, the following actions are instrumental:
. . .
(f) Provide temporary or permanent protection and reception schemes for migrants compelled to leave their countries of origin temporarily or permanently in cases when return is not possible, due to sudden-onset natural disasters, slow-onset environmental degradation, emergency situations, and other life-endangering circumstances, including by providing humanitarian visas, private sponsorships, access to education for children, and temporary work permits.

To my mind, language similar to this ought to be included in the GCR as well. Further thought will have to given to agency jurisdictions and mandate (the Zero Draft leaves this to Secretary General to sort out—para. 41). But it would be odd if the Compact that is focused on forced displacement did not affirm the need of these forcibly displaced persons.

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